XII. The Right to Property

CHAPTER XII. THE BIGHT OF PROPERTY. § 299. Since all material objects capable of being ow"ned, are in one way or other obtained from the Earth, it results that the right of property is originally dependent on the right to the use of the Earth. While there were yet no artificial products, and natural products were therefore the only things which could be appropriated, this was an obviously necessary connexion. And though, in our developed form of society, there are multitudinous posses sions, ranging from houses, furniture, clothes, works of art, to bank-notes, railway-shares, mortgages, governluent bonds, &c., the origins of which have no manifest relation to use of the Earth; yet it needs but to remember that they either are, or represent, products of labour, that labour is made possible by food, and that food is obtained from the soil, to see that the connexion, though remote and entangled, still continues. Whence it follows that a complete ethical justification for the right of property, is involved in the same difficulties as the ethical justification for the right to the use of the Earth.

The justification attempted by Locke is unsatisfactory. Saying that" though the Earth and all inferior creatures be common to all men, yet every man has a property in his own person," and inferring that "the labour of his body, and the work of his hands," are therefore his, he continues :-" Whatever then he removes out of the state THE RIGHT OF PROPERTY. 95 that nature hath provided and left it in, he hath mixed his labour with, and joined to it something that is his own, and thereby makes it his property." But one might reply that as, according to the premises, "the Earth and all inferior creatures" are" common to all men," the consent of all men must be obtained before any article can be equi t... ably" removed fi~onl the COJ;D.IDon state nature hath placed it in." The question at issue is, whether by labour expended in removing it, a man has made his right to the thing greater than the pre-existing rights of all other men put together. The difficulty thus arising may be avoided however. There are three ways in which, under savage, semi-civilized, and civilized conditions, men's several rights of property may be established with due regard to the equal rights of all other men.

Among the occupiers of a tract who gather or catch the wild products around, it may be tacitly, if not overtly, agreed that having equal opportunities of utilizing such products, appropriation achieved by anyone shall be passively assented to by the others. This is the general understanding acted upon by the members of hunting tribes. It is instructive to observe, however, that among s<?IDe of them there is practically, if not theoretically, asserted the qualification indicated above; for usage countenances a partial claim by other tribes-men to game which one of the tribe has killed: apparently implying the belief that this prey was in part theirs before it was killed. Schoolcraft tells us concerning the Comanches that"They recognize no distinct rights of meum and tuum, except to personal property; holding the territory they occupy, and the game that depastures upon it, as common to all the tribe: the latter is appropriated only by capture. • • • He who kills the game retains the skin, and the meat is divided according to the necessity of the party, always without contention, as each individual shares his food with every member of the tribe."

Kindred usages and ideas are found anlong the Chippe .. wayans. Schoolcraft writes :" In the former instance [when game is taken in inclosures by a huntine 96 JUSTICE. party], the game is divided among those who have been engaged in pursuit of it. In the latter [when taken in private traps] it is considered as private property: nevertheless, any unsuccessful hunter passing by, may take a deer so caught, leaving the head, skin, and saddle for the owner." The quasi-equitable nature of these several arrangements, vaguely, if not definitely, regarded as right, will be fully appreciated by anyone who is joint tenant of a fishing, or is privileged along with other guests to utilize one, and who is conscious of annoyance if a co-tenant, or companion guest, makes undue use of it: a feeling 'which would be still stronger were an unfair share of food appropriat'ed as well as an unfair share of sport.

Passing from the hunting stage to the semi-settled stage, we meet with usages having the same general implications. The occupied area, instead of being equally available by all for gathering and catching the food it spontaneously yields, becomes equally available by all for growing food; and the products of labour in the last case, like the achievements of labour in the first, are owned by those who expend the labour. It is perceived that the assent of the clan to ownersl1ip of food grown on an appropriated portion by anyone, is implied in the assumptions of kindred owner .. ships, similarly established, by all others. As shown by the Russian tenures described in the last chapter, the indefinite understanding thus arising, passes eventually into a definite understanding: there is a partition of the land into equal portions; a farming of each portion by its appointed o"\vnerj and a recognition of the produce as his property.

A kindred understanding existed among the Irish in the time of Henry II. and later. " rrhe land belonging to the tribe was shared among its members, but re-divided among thenl at certain intervals of years": the implication being that, by general agreement, whatever the individual obtained from the land by his labour under these con.. ditions was exclusively his. In this case then, as in the first, the right of property arises in conformity with the la'w of equal freedom.

THE RIGHT OF PROPERTY • . 97 Though .we cannot· say that ownership of property, thus arising, results from actual contract between each member of the community and the community as a whole, yet there is something like a potential contract j and such potential contract might grow into an actual contract if one part of the community devoted itself to other occupations, while the rest continued to farm: a 'share of the produce being in such case payable by agreement to those who had ceased to be farmers, for the use of their shares of the land. We have no evidence that such a relation between occupiers and the community, with consequent authorized rights of property in the produce which remained after payment of a portion equivalent to rent, has ever arisen; for, as we have seen, the original ownership by the cOlumunity has habitually been usurped by internal or external aggressol s, and the rent, taking the shape, if not of produce, thell of labour or military service, has been habitually paid to the usurper.

a state of things under which equitable rights of property, in common with equitable rights of an kinds, are submerged. But out of such usurpations there has grown up, as we have seen, ownership· by the State and tenancy under it; from which there may again arise a theoretically equitable right of property. In China, where" the land is all held directly from the Crown" "on payment of a~ annual tax," with" composition for personal service to the government," the legitimate proprietorship of such produce as remains after payment of rent to the community, can be asserted only on the assumption that the emperor stands for the community. In India, where the government is supreme landowner, and where, until the zemindar system was-established, it was the direct receiver of rents) the derivation of a right of property by contract between the individual and the community can be still less asserted without a strained interpretation. Nor at home, where the theory that each landowner is a tenant of the crown is little more than a theory, is there any hetter fulfilment of the 98 JUSTICE.

ethical requirement. Only here and there, where State.. ownership is not potential but actual, and ordinary rents are paid by occupiers to the crown (which has now in such cases come to be identified with the community), has there been consequently established that kind of nse of the Earth which gives a theoretically valid basis to tho right of private property. But admitting that the establishment of an ethically complete right of property is beset with difficulties like those which beset the establishment of an ethically-complete right to the use of the Earth, we are nevertheless shown by a survey of the facts which existing primitive societies present, and the facts traceable in the early histories of civilized societies, that the right of property is originally deducible from the law of equal freedom; and that it ceases to be so deducible only when the other corollaries from the law of equal freedom have been disregarded.

§ 300. This deduction, early recognized in custom and afterwards formulated by legislators, has come to be elaborated and enforced more and more fully as society has developed. That the right of property was originally conceived as a claim established by labour which was carried on without ag gressing on others, is seen in the fact that among the rudest peoples, who have developed the conception to the smallest extent, there is property in weapons, implenlents, dress and decorations-things in which the value given by labour bears a specially large ratio to the value of the raw lnaterial. When with such articles we join huts, which, however, being commonly made by the help of fellow men who receive reciprocal aid, are thus less distinctly products of an indi vidual's labour, we have named about all the things in whjeb, at first, the worth given by effort is great in comparison with the inherent worth; for the inherent worth of the wild food gathered or caught is more obviout' THE RIGHT OF PROPERTY. 99 than the worth of the effort spent in obtaining it. And this is doubtless the reason why, in the rudest societie~, the right of property is more definite in respect of personal belongings than in respect of other things.

That recognition of the right of property is originally recognition of the relation between effort and benefit, 1s, at a later stage, shown in the reg1:1ne of the patriarchal group and the house-community; for though, as Sir Henry Maine points out, the head of the group was at first nominally owner of all its possessions, yet, in fact, he held its possessions in trust, and each of its members, while· he did his share in the carrying on of the joint labours, had his share in the proceeds. Though this arrangement-quasi socialistic within the group, but competitive outside the group-does not give definite expression to the right of individual property, it tacitly asserts that labour must bring to the labourer something like its equivalent in produce. A.nd the tacit assertion passes into an overt assertion in those cases where members of the group acquire property in virtue of labour expended by them apart from the labours of the rest.

To trace the. development of the right of property as established by rulers and administered by their agents, setting out with the interdict on theft in the Hebrew commandments, and continuing down to modern days, in which proprietorships of all kinds have been legally formu lated in multitudinous detail and with great precision, would be no less out of place than it would be superfluous. It suffices for present purposes to note that this implication of the principle of justice, perceived from the first perhaps more clearly than any other) has gained in the ,course of social progress increased definiteness of recognition as well as increased extension and increased peremptoriness; so that now, breach ,of the right of property by unauthorized appropriation of a, turnip or a few sticks, has become a 45 100 JUSTICE. punishable offence; and there is ownership of a song, of a pattern, of a trade-mark.

§ 301. Supposing themselves to be justified, and indeed enjoined by moral principle, many in our days are seeking to override this right. They think it wrong that. each man should receive benefits proportionate to his efforts-deny that he may properly keep possession of all which his labour has produced, leaving the less capable in possession of all which their labours have produced. Expressed in its briefest form, their doctrine is-Let unlike kinds and amounts of work bring like shares of produce-let there be " equal division of unequal earnings." That comrnunism implies violation of justice as defined in foregoing chapters, is manifest. When we assert the liberty of each bounded only by the like liberties of all, we assert that each is free to keep for himself all those gratifications and sources of gratification which he procures without trespassing on the spheres of action of his neig~ bourse If, therefore, one obtains by his greater strength, greater ingenuity, or greater application, more gratifications or sources of gratification, than others, and does this without in any way trenching on the spheres of action of others, the lavv of equal freedom assigns him exclusive possession of all such extra gratifications and sources of gratification; nor can others take them from him without claiming for themselves greater liberty of action than he claims, and thereby violating the law.

In past times the arran gem ents made were such that the few superior profited at the expense of the many inferior. It is now proposed to make arrangements such that the many inferior shall profit at the expense of the few superior. And just as t.he old social system was assuoled by those who maintained it to be equitable) so i~ this new social system assumed to be equitable by those who propose it. Being) as they think, undoubtedly right, this distribution THE RIGHT OF PROPERTY. 101 may properly be established by force; for the employment .0£ force, if not avowedly contemplated, is contemplated by implication. With a human nature such as has been known throughout the past and is known at present, one ,vho, by higher power, bodily or mentaI,or greater endurance of work, gains more than others gain, will not voluntarily surrender the excess to such others: here and there may be found a man who would do this, but he is far fronl being the average man. And if the average superior man will not voluntarily surrender to others the excess of benefit gained by his superiority, the implication is that he must be obliged to do this, and that the use of force to oblige him is justifiable. That the many inferior are physically aLle thus to coerce the few superior is agreed on both sides; but the assumption of the communists is that the required .coercion of the minority who are best by the majority who are worst would be equitable.

After what was said in the early chapters of this Part, it scarcely needs pointing out that a system established in pursuance of this doctrine would entail degeneration of citizens and decay of the community formed by them. Suspension of that natural discipline by which every kind of creature is kept fit for the activities demanded by the conditions of life, would inevitably bring about unfitness for life and either prompt or slow disappearance. § 302. While absolute ethics thus asserts the right of property, and while no such breach of it as is implied by the schemes of communists is warranted by that relative ethics which takes account of transitional needs, relative ethics dictates such limitation of it as is necessitated for defraying the costs of protection, national and individual. The truth recognized· at the outset, that the preservation of the species, or that variety of it constituting a nation, is an end which must take precedence of individual preserva.

tion, has already been cited as justifying that subordination 102 JUSTICE. of the right to life which is implied by expm:;ure to possiblo death in defensive war, and as also justifying that sub ordination of the right to liberty which military service and subjection necessitate. Here it must be again cited as affording a legitimate reason for appropriating such portions of the possessions and the earnings of individuals, as may be required for adequately resisting enemies. But while there is thus a quasi-ethical justification for whatever encroachment on the right of property is necessitated for the purposes of defensive war, there is no justification for any such encroachlnent for the purposes of 'offensive war. No less manifest is it that the right of property is legitimately subject to one further restriction. Property must be trenched upon for supporting those public admin istrations by which the right of property, and all other rights, are enforced. In a society wholly composed of men who duly respected one another's claims, no such partial invasion of the right of property would be called for; but in existing societies and in such societies as are likely to exist for a long time to come, the nearest approach to fulfilment of the law of equal freedom is made when the various deduced rights are sacrificed to the extent needful for preservation of the remainders. Relative ethics, there fore, warrants such equitably-distributed taxation as is required for maintaining order and safety • • CHAPTER XIII.